Ronnie McLin VS Hi Ho, Inc., Hi Ho Barbeque 5, LLC, and John T. Guzzardo, Jr.

Annotate this Case

Download PDF

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1702 RONNIE McLIN VERSUS HI HO INC HI HO BARBEQUE 5 LLC AND JOHN T GUZZARDO JR udgment Rendered 0 7 2013 On Appeal from the Twenty Judicial District Court First In and for the Parish of Livingston State of Louisiana No 133397 Honorable Bruce C Bennett Judge Presiding Rodney Denham Erdey Springs Counsel for Plaintiff Appellant N Christopher M Louisiana Moody Albert D Giraud Ronnie McLin Counsel for Defendant Appellee Stella Guzzardo Inc T J Hammond Louisiana A Bradley Berner Hammond Louisiana Counsel for Defendants Appellees Hi Ho Barbeque 5 L C Sarah L Davis and Donny Gene Davis BEFORE WHIPPLE C McCLENDON J AND HIGGINBOTHAM 7 McCLENDON J Appellant Ronnie McLin who alleges that he entered into a valid agreement with a corporate entity seeks review of the trial court granting of a s motion for summary judgment in favor of the corporation Appellant asserts that the granting of the motion was improper because he entered into an agreement with an agent of the corporation granting him the exclusive rights to open a restaurant franchise Alternatively he argues that he detrimentally relied upon the agent acts and omissions such that the corporation is bound for the s or sacts For the reasons that follow we affirm agent FACTS AND PROCEDURAL HISTORY On April 28 2010 John T Guzzardo Jr signed an agreement with Ronnie McLin which purportedly granted McLin the exclusive right to open a HI HO Bar Q B restaurant in the town of Livingston for a period of two years from the date of the agreement Specifically the agreement provides 1 FAMQIlS BAR Q B OL6 T1ME BARBEpUE QFIEN tMtTATED 2610 W Tisomas FL4MMQND U NEVER DftPCrCATED PhotN 395 9828 St7as 7 2 G 7 JS M O rl t t c i s f e 1 i o e o of I5 abJ C2 r o arr f onnie n av r o er e oSe r o ec n t On April 5 2011 a third party HI HO Barbeque 5 LLC under a HI HO license franchise agreement established and commenced operating a HI HO Q B Bar restaurant in the town of Livingston 2 On June 2 2011 McLin filed a Petition for Injunctive Relief naming HI H0 Inc and John T Guzzardo Jr as defendants Therein McLin alleged that HI H0 Inc intentionally breached the April 28 2010 contract and he sought injunctive relief to prohibit and terminate the operation of HI HO Barbeque 5 s LLC restaurant in Livingston McLin also asserted that relying on his exclusive rights to operate a franchise he acquired certain immovable property and a restaurant business for seroing the general public retail food services In a First Amending and Supplemental Petition for Injunctive Relief McLin named J and T Stella Guzzardo Inc known as HI HO 1 dba HI HO 1 Famous Bar as Q B defendants In their respective answers J and Stella Guzzardo Inc and John T T ardo Gu r alleged that John T Guzzardo Jr was not an authorized representative or agent for HI H0 Inc Rather they indicated that John T Guzzardo Jr is merely an employee of said enterprise without any authorization to grant any franchises or to bind the corporate entity he works for in any fashion Subsequently J and Stella Guzzardo Inc the Corporation filed a T Motion for Summary Judgment Therein the Corporation asserted that John T Guzzardo Jr did not have authority to contract on behalf of or bind the Corporation such that McLin never had an enforceable binding contract with the Corporation In support of its motion for summary judgment the Corporation attached the affidavit of John T Guzzardo Sr the President of the Corporation Therein he attested in part 3 That John T Guzzardo Jr is an employee of Hi Ho T restaurant owned and operated by J Stella Guzzardo Inc 4 That John T Guzzardo Jr is not an authorized agent of the corporation 5 That John T Guzzardo Jr did not have the authority to legally bind the corporation in the alleged transaction involving Ronnie McLin 1 John T Guuardo Sr and Stella Guzzardo are John T Guzzardo Jr parents s 3 That J T 6 Stella Guzzardo Inc have a specific franchise agreement form which is used to grant the right to operate Ho own a Fii restaurant That Ronnie McLin did not sign a franchise agreement with 7 the corporation for the right to own a Hi operate Ho Restaurant That 8 Ronnie consideration McLin for did the not pay right to the corporation operate own a any Ho Hi restaurant In response McLin asserted that genuine issues of material fact remained as to whether John T Guzzardo Jr had actual express or implied or apparent authority to bind the Corporation and whether any consideration was made for the subject written agreement granting McLin the exclusive right to operate and obtain a franchise agreement in Livingston McLin also asserted that he license relied on Guzzardo acts including among other things purchasing a restaurant s business and securing a lease As such Mr McLin concluded that summary judgment was inappropriate Following a hearing on May 21 2012 the trial court signed a judgment granting summary judgment in favor of the Corporation and dismissing McLin s claims against the Corporation with prejudice McLin has appealed raising two assignments of error First he asserts that the trial court erroneously held that there are no genuine issues of material fact as to whether ohn T Guzzardo Jr had authority apparent express or to and implied act on behalf of the Corporation Second McLin asserts that the trial court erred in concluding that no genuine issues of material fact remained regarding whether he relied on John T Guzzardo Jr acts and s or omissions and as a result sustained damages such Ehat summary judgment should not have been granted in favor of the Corporation DISCUSSION 2 John T Guzzardo Jr also moved for summary judgment but the trial court denied Guzzardo s motion at that time The trial court granted a subsequent motion for summary judgment filed by John T Guzzardo Jr which is the subject of the appeal in McLin v HI HO Inc 2013 0036 App La 1 Cir 3d So that is also being handed down this date 4 A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant All Crane Rental of Georgia Inc v Vincent 0116 App 10 La 1 Cir 9 47 So 1024 1027 writ denied 10 10 10 3d 2227 La 11 49 So 387 Appellate courts review summary judgments de 10 19 3d novo using the same criteria that govern the trial court consideration of s whether summary judgment is appropriate Costello v Hardy 03 La 1146 04 21 1 864 So 129 137 A motion for summary judgment should only be 2d granted if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law See LSA 966 P 2 CB The burden of proof on a motion for summary judgment remains with the movant However if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the s movant burden on the motion does not require him to negate all essential elements of the adverse party claim action or defense but rather to point out s to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense Thereafter if the s adverse parry fails to produce factuai support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact LSA art 966 Once the motion for summary P C 2 C judgment has been properly supported by the moving party the failure of the moving non party to produce evidence of a material factual dispute mandates the granting of the motion Pugh v St Tammany Parish School Board 07 1856 La 1 Cir 8 994 So 95 97 on rehearing writ denied 08 App 08 21 2d 2316 La il 996 So 1113 see also LSA art Because 08 21 2d P B C 967 it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive 5 law applicable to this case Janney v Pearce 09 La 1 Cir 5 2103 App 10 7 40 So 285 290 writ denied 10 La 9 45 So 1078 3d 1356 10 24 3d In considering whether genuine issues of material fact remain as to the liability of the Corporation we must consider the law of agency and mandate A mandate is a contract by which a person the principal confers authority on another person the mandatary or agent to transact one or more affairs for the principal LSA art 2989 A mandatary power or authority is composed of C s his actual authority express or implied together with the apparent authority which the principal has vested in him by his conduct Boulos v Morrison 503 2d So 1 3 La 1987 An actual agency is a contract between the principal and agent created either expressly or by implication AAA Tire Export Inc v Big Chief Truck Lines Inc 385 So 426 429 La 1 Cir 1980 An agency is 2d App created expressly by the oral or written agreements of the parties Id It is created by implication when from the nature of the principal business and the s position of the agent within the business the agent is deemed to have permission from the principal to undertake certain acts which are reasonably related and necessary concomitant of the agenYs express authorization Id As between the principal and the mandatary the limit of the mandatary s authority to bind the principal is governed by the agent actual authoriry s Boulos 503 So at 3 However as between the principal and third persons 2d the limit of an agent authority to bind the principal is governed by his apparent s authority Id As the Louisiana Supreme Court stated in Tedesco v Gentry Dev Inc 540 So 960 963 1989 2d Apparent authority is a doctrine by which an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person or to the community of which the third person is a member that the agent is authorized to engage in the particular transaction although the principal has not actually delegated this authority to the agent In an actual authority situation the principal makes the manifestation first to the agent in an apparent authority situation the principal makes this manifestation to a third person However the third person has the same rights in relation to the principal under either actual or apparent authority Further apparent 6 authority operates only when it is reasonable for the third person to believe the agent is authorized and the third person actually believes this Citations and footnote omitted In order for the doctrine of apparent authority to apply the principal must first act to manifest the alleged mandatary authority to an innocent third party s Boulos 503 So at 3 Then the third party must reasonably rely on the 2d s mandatary manifested authority Id See also LSA art 3021 C On appeal McLin contends that John T Guzzardo Jr held himself out to have all authority to make decisions including entering into franchise licensing agreements McLin notes that Guuardo executed in writing on a document with a HI HO heading a two exctusive arrangement to allow McLin to year purchase a HI HO franchise in the town of Livingston McLin avers that his relationship with Guzzardo began years prior when he had approached Guuardo about his interest in obtaining the rights to own and operate a HI HO restaurant McLin asserts that if Guzzardo lacked the authority to sell he had ample opportunity to advise him of such 3 McLin avers that the following admissions by John T Guzzardo r indicate that he had authority to allow McLin to secure a HI HO franchise agreement license 1 Admits telling McLin he was going to get the HI HO franchise and territory around the Town of Livingston 2 Admits writing signing and dating the agreement granting McLin the exclusive right to operate and obtain a HI HO franchise in the Town of Livingston 3 Admits executing the written agreement to assure McLin that he was going to be able to buy a franchise 4 Admits telling McLin that he did not need any money until W you sign the hen license agreement thaYs when you pay 5 Admits assuring McLin he was going to be able to buy a franchise 6 Admits that normally all prospective franchise agreement purchasers go license through him 7 Admits conversations with McLin about the HI HO franchise and explaining all the terms and mnditions costs how licensed and franchises worked 8 Admits McLin furnishing him a copy of his HI HO 4 business plan 9 Admits discussing and physically inspecting potential sites with McLin and making recommendations 10 Admits that knowing McLin was trying to find a suitable location to set up a HI HO after his signing the two eacclusive agreement and even aker having this year knowledge the license agreement for Livingston was sold to someone else 7 McLin in assignment of error number one asserts that John T Guzzardo Jr had actual authority either express or implied from the Corporation to enter the franchise agreement In addition ta the affidavit submitted by J license T ardo Gu Sr in support of the Corporation motion the deposition of John T s Guzzardo r was also introduced Therein 7ohn T Guzzardo Jr testified that he had been given no authority to enter license agreements on behalf franchise of the Corporation and such authority belonged solely to his father McLin has presented nothing in his opposition to the Corporation smotion for summary judgment to show that John T Guzzardo had express authority Specifically McLin has not introduced any charter corporate bylaws or any resolution of the board of directors that granted John T Guzzardo Jr such express authority See S R LSA A 81 12 and 12 D 82 McLin has also presented no other express agreement between the Corporation and John T Guzzardo Jr Additionally with regard to implied granting such authority authority it connotes permission from the principal for the agent to act though that permission is not expressly set forth orally or in writing Generally one should look from the viewpoint of the principal and the agent to determine whether 429 one has implied authority AAA Tire Export Inc 385 So at 2d Given lohn T Guzzardo Jr testimony that he never believed he had s authority to grant such an agreement and the principal position that no such s authority had ever been granted it necessarily follows that there was also no implied authoriry McLin has not presented anything to show that he will be able to satisfy his evidentiary burden of proof at trial to estabiish an actual agency relationship Even assuming that a franchise agreement could be enforced license against a corporation absent actual express authority McLin has not shown that The Corporation submits that it can be bound to a license agreement only if lohn T franchise Guzzardo Jr had actual express authority to enter the agreement The Corporation avers that an exclusive rights agreement is cVearly an act of surrendering or waiving a corporation legal s right which is the type of act that requires an express power and w a document here bearing such legal significance is involved the other party should be on notice that express authorization is necessary for the agent to sign it See Bridges v X Communications Inc 441 App 03 La 5 Cir il861 So 592 598 writ denied 03 La Z 866 03 12 2d 3431 04 20 8 the Corporation acted in any manner to suggest to McLin or to the community that ohn T Guzzardo Jr was authorized to engage in the particular transaction Tedesco 540 So at 963 Rather the aPlegations merely reflect that McLin 2d relied upon the actions of the purported agent aione Such reliance without any manifestations by the principal is insufficient to support binding the Corporation under the doctrine of apparent authority Because McLin will not be able to satisfy his burden of proof at trial to show apparent authority we find no merit to assignment of error number one In his second assignment of error McLin asserts that he detrimentally relied upon John T Guzzardo Jr acts and omissions such that the s or Corporation should not be released from the litigation The elements for a cause of action for detrimental reliance as provided by LSA art 1967 are 1 C the defendant promisor made a promise to the plaintiff promisee 2 the defendant knew or should have known that the promise would induce the plaintiff to rely on it to his detriment 3 the plaintiff relied on the promise to his detriment 4 the plaintiff was reasonable in relying on the promise and 5 the plaintiff suffered damages as a result of the reliance Wooley v Lucksinger 1167 App 06 La 1 Cir 5 961 So 1228 1238 In opposition to the 07 4 2d s Corporation motion McLin has not attested that he relied upon any promises made by the Corporation Rather as noted above McLin attested that he relied upon acts and omissions of John T Guzzardo Jr Accordingly McLin cannot or carry his burden of proof at trial against the Corporation on a detrimental reliance claim Assignment of error number two is without merit 2d So 830 Bewuse we conclude that McLin cannot carry his burden of proof under the doctrine of actual implied authority or apparent authority we need not address whether express authority is necessary to bind the Corporation 5 Louisiana Civil Code article 1967 provides Cause is the reason whya party obligates himself A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee sreliance on the promise Reliance on a gratuitous promise made without required formalities is not reasonable 9 CONCLUSION For the foregoing reasons the trial caurt June 12 2012 judgment s granting summary judgment in favor of the Corporation is affirmed Costs of this appeal are assessed to plaintiff Ronnie McLin appellant AFFIRMED 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.